Time to close the loophole

Many people’s exposure to the Fifth Amendment comes from court shows and the like, when someone on the stand “pleads the Fifth.”

What they’re doing, of course, is exercising their Constitutional right not to provide testimony that could incriminate them.

But there’s another part of the Fifth Amendment we don’t hear about too much, and it’s one that we’ll likely hear more of over the next few weeks, and that’s the right to not face what is called “double jeopardy.”

In short, this is a provision that protects a defendant from being tried for the same criminal offense more than once. So if the state arrests you, and the jury ends up on your side, the state can’t arrest you a second time to try again.

Yet, there’s a nuance that is sometimes overlooked when it comes to double jeopardy. The Fifth Amendment protects you only at the federal level. If you were tried and acquitted of breaking a federal law, the state could come after you for the same crime, if it violated a state law.

That’s what we call “dual sovereignty,” and it’s enshrined into the very being of our country — that we live not only under federal law, but state law, too. So if the feds take us to court, that’s not the same if the state takes us to court.

Except in New York.

If you’re tried for a federal crime, and you somehow beat the rap, New York — unlike other states — can’t look to try you as well. That’s because New York has a “loophole” in its statutes that prohibits the state from trying cases already tried at the federal level.

Some might say this is pure protection from double jeopardy. But in reality, it’s the state giving up its right to prosecute, no matter what the federal government is doing.

Having multiple trials over the same crime is not something really any of us wants. But you can’t have separate state and federal laws if you can’t enforce separate state and federal laws.

State Sen. Todd Kaminsky, D-Long Beach, has introduced a bill that would close that loophole, but it’s stalled in committee.

With a president passing out pardons like its candy, the states need the power to act. Without Kaminsky’s bill, New York has no power, and it lets Trump’s White House walk all over our courts.